Appeal from the Circuit Court of Lake County; the Hon.
Lawrence D. Inglis, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 3, 1985.
The defendant, John Leonora, was charged by indictment with the reckless homicide of Earl and Elizabeth Blake (Ill. Rev. Stat. 1983, ch. 38, par. 9-3). The charges arose out of a motor vehicle accident which occurred on Illinois Route 22 just west of Interstate Route 94 (I-94) in Lake County. Following a jury trial, the defendant was convicted of those offenses and sentenced to two concurrent three-year terms of imprisonment. He appeals, contending (1) that the trial court improperly excluded evidence of other accidents that had occurred at the location involved, and of safety measures concerning the roadway taken after the accident involved herein; (2) that the trial court committed various errors regarding the jury instructions and verdict forms as they related to different counts of the indictment, and that these errors were compounded by improper closing argument by the prosecutor; (3) that he was not proved guilty beyond a reasonable doubt; (4) that the jury was improperly instructed concerning circumstantial evidence; and (5) that the concurrent three-year sentences of imprisonment are excessive and the result of the trial court's consideration of improper factors.
The motor vehicle accident involved here took place on November 11, 1982, at about 11 p.m. The defendant was driving his car, a green Dodge, westbound on Route 22. There was one passenger in his car, Bryan Beauchamp. Earl and Elizabeth Blake were proceeding eastbound on Route 22 in their silver Datsun.
Interstate Route 94 passes underneath Route 22. An exit ramp from the interstate intersects Route 22 from the north. At that intersection Route 22 has two lanes for traffic in both directions. As one proceeds west on Route 22 from that intersection, the westbound lane on the right merges into the one on the left. The pavement in the right lane continues a short distance after the merger as an acceleration-deceleration lane for two private drives. The paved portion on the right then becomes a gravel shoulder.
On the date in question Route 22 was in the process of being resurfaced. Because of the road construction there was no white line on the pavement to mark the northern edge of the westbound lanes as they merged together. There was, however, a sign on the westbound side of Route 22 two-tenths of a mile east of that point, warning of the lane merger ahead. New pavement had been laid on the eastbound lanes, but not on the westbound lanes. As a result, at the center of the roadway there was a one-inch rise in the pavement as one crossed from the westbound into the eastbound lanes.
At the time of the accident it was dark. There were no street lights in the area of the collision. The State presented testimony, however, from people who had driven westbound past that area that night to the effect that they could discern the border between the pavement and the gravel shoulder by the light from their headlights. Although it was not raining at the time of the collision, the road was wet from rains earlier that night.
Leonora, proceeding westbound, passed on the right a car being driven by Craig Sinclair, which had just turned onto the westbound portion of Route 22 from the I-94 exit ramp. At the time Leonora's car began to pass it, the Sinclair car, a Ford Fairmont, was traveling 30 to 40 miles per hour. The speed limit was 45 miles per hour. Jilayne Sinclair, Craig's mother, who was riding in the back seat of the car, testified that after the defendant's car had passed their car, the defendant's car was traveling at 40 to 50 miles per hour. The evidence was in conflict on the question of at what point on Route 22 Leonora began to pass the Sinclair car. The testimony of Craig Sinclair and his brother Cory, who was sitting in the front passenger seat, indicated that when Leonora began to pass their car, the acceleration-deceleration lanes had already ended, and that Leonora pulled directly onto the gravel shoulder. On the other hand, Bryan Beauchamp, the defendant's passenger, who stated that he had been drunk at the time, testified that the road turned from pavement to gravel after the defendant had already pulled up on the right of the Sinclair car.
In any event, after the defendant's car had pulled in front, it drove back onto the paved portion of Route 22. Craig Sinclair testified that when the defendant's car was driven back onto the pavement, it swerved into the eastbound lane, then back into the westbound lane, and then back into the eastbound lane, where it collided with the Blake vehicle. Cory stated that after it pulled onto the pavement, the defendant's car "fishtailed," i.e., the back of the car swerved back and forth into the different lanes prior to the collision in the eastbound lane. Jilayne Sinclair said that the car fishtailed in its own lane and then crossed into the eastbound lane, where the collision occurred. Finally, Beauchamp testified that when the defendant turned left onto the pavement, he tried to turn right to straighten the car out, but it slid into the eastbound lane where the collision occurred. Skid marks were found going from the westbound into the eastbound lane. The evidence indicated that the Blakes' car had been proceeding eastbound in the proper lane at about 35 miles per hour prior to the collision.
The evidence was conflicting on the question of whether the defendant was intoxicated at the time of the accident. He, along with Beauchamp, had spent part of the evening prior to the accident at the house of a friend, Lisa Baruffi. They arrived there about 7 p.m. Baruffi stated that the three of them drank beer at her house. She was asked how much she saw the defendant and Beauchamp each drink, and she replied, "I didn't see them I wasn't looking at them the whole time while they were drinking. I know there was about two 6-packs." On cross-examination Baruffi acknowledged that she could not verify that the defendant even finished one bottle of beer. Baruffi stated that at about 8 p.m. she, the defendant, and Beauchamp went to a tavern called Gus and Roman's. According to Baruffi, on the way there each of the three of them drank a beer. On cross-examination, Baruffi acknowledged that she could not verify that the defendant finished the beer he was drinking in the car. Baruffi stated that the defendant and Beauchamp left the tavern without her at about 10:30 or 11 p.m. While they were there they shared three pitchers of beer with her. Again on cross-examination, Baruffi stated that she was not watching the defendant every minute, and that she could not verify that he had drunk more than a half a glass out of the three pitchers. Baruffi did testify, however, that in her opinion, when the defendant left the tavern, he was drunk. She also was drunk. On cross-examination she testified that she did not see the defendant stagger that night, and that his speech was not slurred. She based her opinion that the defendant was drunk on the amount of beer that they had ordered, and on the way he was acting. She had known the defendant for five years. Baruffi was impeached with a statement she gave to an investigator to the effect that the defendant had had nothing to drink while she was with him that evening. She said she gave that statement in order to protect the defendant. Baruffi was also impeached with a statement she made before the grand jury to the effect that she and her companions were not drinking in the car on the way to Gus and Roman's. She said that she did not remember that fact at the time.
Bryan Beauchamp told a different story. According to Beauchamp, on the way to Baruffi's the defendant "had a few sips" from a beer Beauchamp was drinking. He stated that the defendant did not drink anything at Baruffi's house. The three of them left her house at about 7:15 p.m. and went to Gus and Roman's, arriving at about 8 p.m. Nothing was drunk in the car on the way there. When they arrived, Beauchamp ordered two pitchers of beer, and all three of them began to drink. Beauchamp stated that when he completed "his" pitcher, the defendant had half of "his" left. By that time Baruffi was socializing with other people. Beauchamp testified that he then "downed" the remainder of the defendant's pitcher and left him at the table in order to visit with a girl at the bar. At that point, it was about 8:45 p.m. Beauchamp did not see the defendant have anything else to drink that evening. At about 10:55 p.m. Beauchamp, the defendant and Baruffi went to another bar. Baruffi was admitted, but the defendant and Beauchamp were not allowed in, presumably because they were under 21 years of age. They left to go home shortly thereafter. The accident occurred while they were driving home. Beauchamp estimated that the pitchers at Gus and Roman's held about four 10-ounce glasses. He testified that in his opinion the defendant did not have very much to drink. He was impeached with a statement he made to a police officer after the accident to the effect that the defendant had been drinking quite a bit. Finally, Beauchamp expressed his opinion that the defendant was not intoxicated on the night in question, although he (Beauchamp) was.
The paramedics who arrived at the scene of the collision testified that they detected the odor of alcohol on the defendant's breath.
Officer Richter of the Lincolnshire police department testified that he interviewed the defendant on the night of the accident in the emergency room at Highland Park Hospital at about 2 a.m. The defendant was lying on a stretcher. He had numerous lacerations on his face, and his right ankle was broken. Richter asked the defendant what happened in the accident, and he replied that he could not remember, and that Richter should ask Beauchamp. Richter testified that he detected a strong odor of alcoholic beverage on the defendant's breath. He said that the defendant's eyes were glassy, and that he was swearing and complaining a lot about the pain he was in and about the fact that nobody was doing anything for him at the hospital. Richter said that the defendant kept trying to sit up. The defendant consented to give the police a blood sample, but the doctor on duty told Officer Richter that he would not take the sample because the defendant was going to be transferred to Alexian Brothers Hospital in Elk Grove Village. Richter expressed his opinion that, at the time of his interview with the defendant, the latter was under the influence of intoxicating liquor. The defendant did not arrive at Alexian Brothers Hospital until 5:15 a.m. A blood sample was taken from the defendant shortly thereafter which showed that there was no alcohol in his blood at that time. Pursuant to a motion in limine by the defendant, the State was precluded from calling an expert witness to testify concerning the rate that alcohol is eliminated from the body.
The defendant maintains that the trial court improperly excluded evidence of other accidents that occurred at the location involved, and of safety measures concerning the roadway taken after the accident involved herein. Prior to trial, the State filed a motion in limine to preclude the defense from introducing such evidence. At the hearing on that motion, defense counsel indicated that he had found out about an accident three years prior to the one involved here "where a truck crossed over the yellow line in a similar fashion to the way [the defendant's] car crossed over the yellow line, and there was a double fatality in an almost identical accident at that identical spot." He said that he had access to the police reports concerning that accident. Defense counsel also had a computer printout from the Illinois Department of Transportation (IDOT) which listed accidents which had occurred at the location involved since 1980. The printout showed the time of day of each accident as well as the weather conditions. Defense counsel also had evidence that after the accident involved ...